Appellate Division, Fourth Department
Nov 16, 2018
2018 NY Slip Op 07850
Provider prevailed
An EUO nonappearance defense is subject to preclusion when the insurer fails to issue a timely denial. The Appellate Division, Fourth Department, reversed the judgment, insofar as appealed from, denied the insurers' summary judgment motion, and vacated declarations relieving them of payment obligations. Under Insurance Law § 5106 (a) and 11 NYCRR 65-1.1 (d), submission to a reasonably requested EUO is a condition of payment under an existing policy, rather than a condition of coverage's existence. Rejecting contrary First Department precedent, the court applied the narrow no-coverage exception described in Fair Price Med. Supply Corp. v Travelers Indem. Co. The claims specialist's conclusory affidavit, unsupported by denial forms, failed to establish timely and proper denials.
Appellate Division, Second Department
Nov 7, 2018
2018 NY Slip Op 07432
A loss-transfer award declining an additional 20% wage offset had a reasonable basis and was not arbitrary or capricious. The Appellate Division, Second Department, affirmed denial of the no-fault insurer's CPLR article 75 petition, leaving the compensation provider's award intact. The compensation provider sought reimbursement under Insurance Law § 5105 for workers' compensation benefits paid in lieu of first-party benefits. The arbitrator declined the offset under Insurance Law § 5102 (b) because a one-third workers' compensation wage offset had already been applied. Compulsory arbitration awards require evidentiary support, and legal determinations survive review if any reasonable hypothesis supports the interpretation.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51759(U)
Insurer prevailed
An EUO request tolls later claims by the same provider for the same assignor and accident before two failures to appear for duly scheduled EUOs. Applying ARCO Med. NY, P.C. v Lancer Ins. Co., the court held that the initial request tolled four claims received afterward. For two earlier bills, the request was mailed 16 business days after receipt, one day beyond 11 NYCRR 65-3.5 (b). Under 11 NYCRR 65-3.8 (l), that delay reduced the denial period by one day; denials mailed 21 days after the second nonappearance were timely. The Appellate Term, Second Department, affirmed summary judgment dismissing all 17 bills for EUO nonappearance and denial of the provider's cross motion.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51763(U)
Insurer prevailed
The insurer's mail-receipt practices were irrelevant to the provider's challenge to timely mailing of the first EUO scheduling letter. The Civil Court made findings under CPLR 3212 (g) establishing timely mailing of the EUO letters and denials and the provider's nonappearance, but denied summary judgment over concerns about receipt and routing of bills between insurer offices. The provider challenged the mailing affiant's knowledge of claim-receipt procedures and the nonappearance proof. The Appellate Term, Second Department, upheld the nonappearance finding, rejected the receipt-procedure challenge and the asserted triable issue, and reversed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51780(U)
Insurer prevailed
The insurer established the provider's failure to appear for two scheduled EUOs, supporting dismissal of its no-fault claims. The provider appealed from an order granting the insurer summary judgment dismissing the complaint. The Appellate Term, Second Department, affirmed, finding the proof of nonappearance sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's remaining argument was raised for the first time on appeal, and the court declined to consider it.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51785(U)
Provider prevailed
The insurer failed to justify severance merely by citing separate accidents and numerous affirmative defenses. The provider sought assigned no-fault benefits for services rendered to three assignors. The insurer moved under CPLR 603 to sever one assignor's claim from the others. Separate accidents and 50 pleaded defenses, standing alone, did not show that the claims would involve different factual and legal questions. Severance rests in judicial discretion, and appellate intervention requires a showing of prejudice to a substantial right. The Appellate Term, Second Department, affirmed denial of the insurer's motion because the record did not establish an improvident exercise of discretion.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51762(U)
Insurer prevailed
The provider failed to justify submitting claims beyond 45 days, and other services were rendered after policy limits were exhausted. The insurer proved timely denials under 11 NYCRR 65-2.4 (c), advising that reasonable justification could excuse lateness. The provider initially sent NF-3 forms to another insurer even though those forms showed awareness of the correct recipient, and it offered no reasonable justification. For the remaining claims, the insurer established exhaustion more than three months before the services were rendered under 11 NYCRR 65-3.15. The provider raised no triable issue on either ground. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment motion dismissing the complaint.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51768(U)
Split result
The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim. The insurer established the provider's nonappearance at an initial and follow-up EUO, but the late initial request prevented summary judgment dismissing the first cause of action on that defense. The Appellate Term, Second Department, modified the order to deny the branch of the insurer's motion addressing that cause of action and otherwise affirmed dismissal. The provider thus preserved the first cause of action, while the insurer retained summary judgment dismissing the remaining claims.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51784(U)
Split result
The provider's mailing proof raised factual disputes over timely claim submission and receipt of requested verification. The insurer sought summary judgment on the first cause of action based on nonreceipt of the claim and on the second based on failure to provide verification within 120 days under 11 NYCRR 65-3.5 (o). The provider's proof created a presumption of timely mailing of the first claim. For the second, the insurer established timely verification requests, nonreceipt of verification, and timely denial, but the provider's affidavit created a presumption that verification was mailed and received. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed denial of the provider's cross motion because both claims presented triable issues.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51776(U)
Insurer prevailed
A claimant seeking no-fault benefits from MVAIC must establish timely filing of an affidavit giving notice of intention to claim. Following Avicenna Med. Arts, P.L.L.C. v MVAIC, the Appellate Term, Second Department, treated filing as a condition precedent under Insurance Law § 5208 (a) (1) and (3) and § 5221 (b) (2). The provider did not establish submission of the affidavit and therefore failed to prove its prima facie case that the assignor was a covered person. The court reversed the provider's judgment after a nonjury trial and remitted for entry of judgment dismissing the complaint in MVAIC's favor. It separately dismissed the appeal from the decision under CCA 1702.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51760(U)
Insurer prevailed
The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion for summary judgment. It found proof of proper denial mailing and IME nonappearance sufficient under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., respectively.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51761(U)
Insurer prevailed
The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance. The provider correctly argued that the delay letters did not toll the insurer's time to pay or deny its assigned no-fault claims. The motion also included EUO scheduling letters mailed by the law firm retained to conduct the assignor's EUOs, however, and the provider raised no issue concerning their sufficiency. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and rejected the provider's remaining contention.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51764(U)
Insurer prevailed
The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint. The court found the doctor's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. It declined to consider the provider's remaining argument concerning that defense because the argument was raised for the first time on appeal.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51765(U)
Split result
An insurer's payments of other claims after denying the claims sued upon do not warrant summary judgment for exhausted coverage. Applying 11 NYCRR 65-3.15 and Alleviation Med. Servs., P.C. v Allstate Ins. Co., the Appellate Term, Second Department, rejected the insurer's allegation that subsequent payments exhausted available coverage. For one equipment bill, however, the insurer established a timely denial and submitted an affirmation and affirmed peer review providing a factual basis and medical rationale for lack of medical necessity. The provider did not rebut that showing. The court modified the order to grant dismissal of that bill and otherwise affirmed the denial of the insurer's motion.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51769(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's no-fault claims for failure to attend scheduled EUOs was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, No. 2016-435 K C, without providing independent reasoning.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51770(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for the assignor's EUO nonappearance was granted. The Appellate Term, Second Department, affirmed, rejecting the provider's sole contention by stating that the insurer established timely mailing of the denial under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., without describing the mailing proof.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51771(U)
Insurer prevailed
The insurer's cross motion for summary judgment was granted on its defense that it had issued no policy covering the loss. The Appellate Term, Second Department, affirmed the denial of the provider's motion and dismissal of its assigned no-fault claims, stating only that the insurer's proof sufficiently demonstrated the absence of a policy covering the loss and citing prior decisions.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51772(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for the assignor's IME nonappearance was granted. The Appellate Term, Second Department, affirmed, stating that the insurer's proof established proper mailing of the scheduling letters and the assignor's nonappearance. It rejected the provider's remaining contentions as lacking merit.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51773(U)
Insurer prevailed
An insurer need not state objective reasons for EUO requests to establish summary judgment based on a provider's nonappearance. Under Interboro Ins. Co. v Clennon, the insurer need only establish two duly demanded EUOs, two failures to appear, and a timely claim denial. Here, the insurer's proof supported a presumption of timely mailing of the denial and established the provider's nonappearance. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's assigned no-fault claims. It declined to consider the provider's remaining argument because the provider raised it for the first time on appeal.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51775(U)
Insurer prevailed
The provider's unsigned, unsworn verification affidavit failed to raise a triable issue as to whether its action was premature. The Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint for failure to supply requested verification. The provider opposed the cross motion with a purported affidavit from its owner that was neither signed nor sworn before a notary. The Appellate Term, Second Department, affirmed and expressly declined to decide whether the document's contents would otherwise support a presumption that the verification was mailed to and received by the insurer.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51778(U)
Insurer prevailed
The provider's verification-mailing affidavit raised a factual issue as to whether its no-fault action was premature. The insurer showed that it timely mailed initial and follow-up verification requests and had not received the requested material. The provider's opposing affidavit, however, supported a presumption that the verification was mailed to and received by the insurer. That conflict precluded summary judgment for either party. Treating the appeal as one from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion, and denied that cross motion; the denial of the insurer's motion remained in place.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51779(U)
Insurer prevailed
The insurer's record-search affidavits established that no relevant policy covered the vehicle on the accident date. In the provider's action for assigned no-fault benefits, three insurer employees described their searches and reported that no relevant policy was in effect. Their affidavits demonstrated prima facie that the claim did not arise from a covered incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider raised no triable factual issue. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 30, 2018
2018 NY Slip Op 51782(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted and affirmed on appeal. The Appellate Term, Second Department, found that the insurer sufficiently established the provider's failure to appear for two scheduled EUOs, citing Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co..
Appellate Term, First Department
Nov 29, 2018
2018 NY Slip Op 51708(U)
Insurer prevailed
The provider's medical affirmation and the assignor's subjective pain complaints failed to rebut the insurer's IME findings. The insurer established timely denials supported by an affirmed orthopedic IME report supplying a factual basis and medical rationale that the injuries had resolved and further treatment was unnecessary. The opposing medical affirmation was not based on an examination of the assignor and did not meaningfully address the examining physician's findings. Subjective pain complaints did not overcome the report's objective tests. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion in its entirety, and dismissed the complaint.
Appellate Term, Second Department
Nov 29, 2018
2018 NY Slip Op 51749(U)
Provider prevailed
The insurer failed to establish policy exhaustion when the claims became complete and obtained no modification of the provider's judgment. After a nonjury trial, the insurer sought postjudgment relief under CPLR 5019 (a) and 5240, asserting that no policy funds remained. The exhaustion defense was not precluded by omission from the denial, but the motion papers failed to establish exhaustion at the relevant time under 11 NYCRR 65-3.15, Nyack Hosp. v General Motors Acceptance Corp., and Alleviation Med. Servs., P.C. v Allstate Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving open whether proven exhaustion would support postjudgment relief.
Appellate Term, First Department
Nov 29, 2018
2018 NY Slip Op 51709(U)
Provider prevailed
The insurer's contradictory submissions raised factual issues about timely and proper fee-schedule denials. In an action for assigned no-fault benefits, the insurer appealed the partial denial of its motion for summary judgment dismissing the complaint. Its submissions conflicted about both the amounts purportedly paid on the claims and the timing of those payments. Those conflicts created, rather than eliminated, triable issues as to whether the claims were denied in accordance with the applicable fee schedules. The Appellate Term, First Department, affirmed the order, insofar as appealed from, leaving the challenged claims pending.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51696(U)
Provider prevailed
The insurer failed to establish a timely denial after the assignor's alleged EUO nonappearances, defeating its summary judgment cross motion. The insurer therefore did not demonstrate that its EUO defense was free from preclusion under Westchester Med. Ctr. v Lincoln Gen. Ins. Co. The provider also failed to establish entitlement to summary judgment: it showed neither that the claim was not timely denied nor that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the denial of the provider's motion in place.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51699(U)
Insurer prevailed
The self-insurer proved timely mailing of its denials, and the provider's remaining argument was unpreserved. The provider appealed summary judgment dismissing its assigned no-fault complaint on the ground that the self-insurer had not received timely notice of the accident under 11 NYCRR 65-2.4 (a) and (b). The Appellate Term, Second Department, found the mailing proof sufficient under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It declined to consider the other argument because it was raised for the first time on appeal and affirmed the order granting the self-insurer's motion.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51684(U)
Insurer prevailed
The provider failed to establish its motorcycle-riding assignor's eligibility for MVAIC benefits because it did not prove a class C motorcycle. The assignor's sworn NF-2 stated that the assignor was driving a motorcycle when injured. Following Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., the Appellate Term, Second Department, explained that Insurance Law § 5103 (a) (1) and (2) generally excludes motorcycle riders. Insurance Law § 5102 (m), read with Vehicle and Traffic Law §§ 123, 121-b and 2265 (3), permits benefits for class C motorcycles, which have a maximum speed of 20 miles per hour and require no insurance, absent another statutory bar. Without that proof, the provider failed its prima facie case, and dismissal after the nonjury trial was affirmed.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51681(U)
Insurer prevailed
The insurer's mail-receipt practices were irrelevant to the provider's challenge to timely mailing of the first EUO scheduling letter. The Civil Court, Kings County, denied summary judgment despite finding timely mailing of the EUO notices and denials and the provider's nonappearances established under CPLR 3212 (g). It reserved an issue concerning knowledge of mail-receipt practices at the insurer's Atlanta office. The Appellate Term, Second Department, confirmed that the record established nonappearance and rejected the mail-receipt objection. An insurer seeking summary judgment on this defense must establish two duly demanded EUOs, two failures to appear, and timely denial of the claims. The appellate court reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51682(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint on the provider's EUO nonappearance was granted on appeal. The Civil Court, Kings County, found mailing and nonappearance established under CPLR 3212 (g), but reserved an issue concerning bill receipt and processing locations. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-426 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51683(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and the provider's failure to appear for the scheduled EUOs. In the provider's action to recover assigned first-party no-fault benefits, the Civil Court, Kings County, granted the insurer's motion for summary judgment dismissing the complaint. The Appellate Term, Second Department, rejected the provider's challenges to both showings and affirmed the order in the insurer's favor.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51685(U)
The provider's judgment after a directed verdict on medical necessity was reversed on the insurer's appeal, and a new trial was ordered. The Civil Court, Kings County, had precluded the insurer's expert testimony at the nonjury trial. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51687(U)
The provider's judgment after a directed verdict on medical necessity was reversed on the insurer's appeal, and a new trial was ordered. The Civil Court, Kings County, had precluded the insurer's expert testimony at the nonjury trial. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51688(U)
An insurer's medical expert may testify about lack of medical necessity even if another expert prepared the peer review report. At a nonjury trial, the Civil Court, Kings County, precluded the insurer's expert and directed a verdict for the provider. The Appellate Term, Second Department, reversed the judgment and ordered a new trial. The expert's testimony must remain within the denial's basis as stated in the peer review report. The provider bears the burden of objecting if testimony exceeds that basis and, if necessary, producing the report. The insurer may not use the report to prove lack of medical necessity or impermissibly bolster its expert's testimony.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51689(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider at the nonjury trial. The Appellate Term, Second Department, remitted the matter for a new trial for the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51690(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider at the nonjury trial. The Appellate Term, Second Department, remitted the matter for a new trial for the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51691(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider. The Appellate Term, Second Department, relied on the companion appeal decided the same day, Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., No. 2016-1054 K C, and remitted for a new trial.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51692(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider. The Appellate Term, Second Department, relied on the companion appeal decided the same day, Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., No. 2016-1054 K C, and remitted for a new trial.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51693(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider. The Appellate Term, Second Department, relied on the companion appeal decided the same day, Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., No. 2016-1054 K C, and remitted for a new trial.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51694(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider at the nonjury trial. The Appellate Term, Second Department, remitted the matter for a new trial for the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51697(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider at the nonjury trial. The Appellate Term, Second Department, remitted the matter for a new trial for the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51698(U)
Provider prevailed
The insurer's cross motion for summary judgment dismissing the claims for the assignor's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2016-1141 K C, and otherwise affirmed, leaving the denial of the provider's summary judgment motion in place.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51700(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider at the nonjury trial. The Appellate Term, Second Department, remitted the matter for a new trial for the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51702(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider. The Appellate Term, Second Department, relied on the companion appeal decided the same day, Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., No. 2016-1054 K C, and remitted for a new trial.
Appellate Term, Second Department
Nov 23, 2018
2018 NY Slip Op 51703(U)
The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered. The Civil Court had directed a verdict for the provider at the nonjury trial. The Appellate Term, Second Department, remitted the matter for a new trial for the reasons stated in the companion appeal decided the same day, No. 2016-1054 K C.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51643(U)
Insurer prevailed
The insurer established full payment of CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture. The provider sought additional no-fault reimbursement for the billed services. The insurer's proof established presumptively timely mailing of the denials and full payment under the applicable schedule, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, insofar as appealed from, and granted the branches of the insurer's cross motion for summary judgment dismissing the claims under those two billing codes.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51642(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for failure to attend duly scheduled EUOs was affirmed. The Appellate Term, Second Department, rejected the provider's sole contention that its nonappearance was not proved, finding the insurer's proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51640(U)
Insurer prevailed
The insurer's cross motion dismissing claims as exceeding the workers' compensation fee schedule was affirmed on proper mailing proof. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal of its claims for services rendered before April 1, 2013. It found the denials properly mailed under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and rejected the remaining contention without explanation.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51639(U)
Insurer prevailed
The self-insurer's summary judgment dismissing the provider's claims for the assignor's IME nonappearance was affirmed. The Appellate Term, Second Department, rejected the provider's sole contention that nonappearance was not proved, finding the submitted proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51637(U)
Insurer prevailed
The self-insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, found timely mailing of EUO notices and denials and the provider's nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider raised no triable factual issue.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51632(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. The provider challenged both the proof of its EUO nonappearances and the absence of objective reasons for the requests. The Appellate Term, Second Department, found the nonappearance proof sufficient. Under Interboro Ins. Co. v Clennon, the insurer need only establish two duly demanded EUOs, two failures to appear, and a timely denial of the claims. The appellate court affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the provider's assigned no-fault benefits complaint.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51633(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal decided the same day, No. 2016-428 K C.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51634(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal decided the same day, No. 2016-428 K C.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51635(U)
Insurer prevailed
The insurer established proper mailing of IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. The provider challenged both showings on appeal from an order denying its summary judgment motion and granting the insurer's cross motion dismissing its assigned no-fault benefits complaint. The Appellate Term, Second Department, found the insurer's proof sufficient on mailing and nonappearance and affirmed the Civil Court, Kings County, order in the insurer's favor.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51641(U)
Provider prevailed
The provider's verification-mailing affidavit raised a triable issue whether its no-fault action was premature. The insurer sought summary judgment dismissing the assigned benefits complaint because requested verification remained outstanding and made a prima facie showing of nonreceipt. The provider's opposing affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. That conflicting proof left a factual issue concerning prematurity. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order, insofar as appealed from, denying the insurer's motion and leaving the provider's action pending.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51644(U)
Provider prevailed
The provider's owner's affidavit raised a triable issue whether the claim was submitted within 45 days of the services rendered. The insurer sought summary judgment based on late submission under 11 NYCRR 65-1.1. The Civil Court, Kings County, denied the motion but found under CPLR 3212 (g) that the denial was timely and proper, leaving claim-submission timeliness for trial. The Appellate Term, Second Department, rejected the insurer's sole appellate argument that the opposing affidavit was insufficient. It affirmed the order, insofar as appealed from, leaving the provider's action pending because the insurer had not established late submission as a matter of law.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51645(U)
Insurer prevailed
The insurer's cross motion for summary judgment on the fee-schedule defense to claims billed under CPT codes 97810 and 97811 was granted on appeal. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, insofar as appealed from, and dismissed those claims for the reasons stated in the companion appeal decided the same day, No. 2016-1377 K C.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51646(U)
Insurer prevailed
The insurer established timely EUO notices and denials and the provider's two nonappearances, with no triable issue raised in opposition. The insurer sought summary judgment dismissing the provider's assigned no-fault benefits complaint. Its proof showed timely mailing of initial and follow-up EUO scheduling letters, the provider's failure to appear on either date, and timely denial of the claims on that ground. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51647(U)
Insurer prevailed
The insurer's cross motion for summary judgment on the fee-schedule defense to claims billed under CPT codes 97810 and 97811 was granted on appeal. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, insofar as appealed from, and dismissed those claims for the reasons stated in the companion appeal decided the same day, No. 2016-1377 K C.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51648(U)
Provider prevailed
The provider's affidavit raised a triable issue whether it supplied verification requested under the 120-day rule. The insurer sought summary judgment dismissing the assigned no-fault benefits complaint under 11 NYCRR 65-3.5 (o). Its proof established prima facie timely mailing of initial and follow-up requests, nonreceipt of the requested verification, and timely denial on that ground. The provider's opposing affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order and denied the insurer's motion, allowing the provider's action to proceed.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51649(U)
Insurer prevailed
The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue. The insurer moved for summary judgment dismissing the provider's assigned no-fault benefits complaint on EUO nonappearance grounds. Its proof showed timely mailing of the initial and follow-up scheduling letters, nonappearance on both scheduled dates, and timely denials based on those failures. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order denying the motion and granted summary judgment dismissing the complaint in the insurer's favor.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51650(U)
Provider prevailed
The insurer's summary judgment motion based on an alleged material misrepresentation of the assignor's residence was denied on appeal. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order dismissing the provider's assigned no-fault benefits complaint, relying on the reasons stated in Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51651(U)
Provider prevailed
The insurer's summary judgment motion based on an alleged material misrepresentation of the assignor's residence was denied on appeal. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order dismissing the provider's assigned no-fault benefits complaint, relying on the reasons stated in Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51652(U)
Insurer prevailed
The insurer established timely mailing of the denial forms asserting lack of medical necessity, defeating the provider's appellate challenge. The provider sought assigned first-party no-fault benefits and appealed an order denying its summary judgment motion and granting the insurer's cross motion dismissing the complaint on medical necessity grounds. The Appellate Term, Second Department, rejected the provider's mailing argument and affirmed the Civil Court, Kings County, order in the insurer's favor.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51653(U)
Insurer prevailed
The insurer's proof established presumptively timely mailing of EUO notices and the denial, as well as the provider's nonappearances. The provider appealed the denial of its summary judgment motion and the grant of the insurer's cross motion dismissing the assigned no-fault benefits complaint. The Appellate Term, Second Department, rejected challenges to mailing and nonappearance proof and held that the insurer need not supply objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment. It declined to consider another argument concerning the cross motion because the provider raised it for the first time on appeal. The Civil Court, Queens County, order was affirmed in the insurer's favor.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51654(U)
Split result
An insurer must request missing documentation for a "By Report" claim before denying payment for insufficient documentation. The provider billed services under CPT code 20999 without the additional documentation needed to determine reimbursement. Under 11 NYCRR 65-3.5 (b), an insurer unwilling to pay the claim as submitted must request necessary verification within 15 business days of receiving it. The insurer did not demonstrate such a request. The Appellate Term, Second Department, modified the Civil Court, Kings County, order, insofar as appealed from, to deny the insurer's cross motion concerning those services. It upheld denial of the provider's motion because the provider failed to show an untimely denial or a timely denial that was conclusory, vague, or legally meritless.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51655(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. The provider challenged both the proof of its EUO nonappearances and the absence of objective reasons for the requests. The Appellate Term, Second Department, found the nonappearance proof sufficient. Under Interboro Ins. Co. v Clennon, the insurer need only establish two duly demanded EUOs, two failures to appear, and a timely denial of the claims. The appellate court affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the provider's assigned no-fault benefits complaint.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51656(U)
Insurer prevailed
The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance. The provider appealed an order denying its summary judgment motion and granting the insurer's cross motion dismissing the assigned no-fault benefits complaint. The Appellate Term, Second Department, rejected the provider's mailing challenge and affirmed the Civil Court, Kings County, order in the insurer's favor. The provider's remaining contentions were either without merit or unreviewable because they were raised for the first time on appeal.
Appellate Term, Second Department
Nov 16, 2018
2018 NY Slip Op 51657(U)
Insurer prevailed
An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture to reimburse a licensed acupuncturist. The provider sought assigned no-fault benefits and challenged the insurer's fee reductions under that schedule. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, rejected the challenge and affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the complaint because the amounts sought exceeded the applicable fee schedule.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51584(U)
Insurer prevailed
The insurer established lack of medical necessity through an unrebutted IME report despite insufficient proof of EUO nonappearance. Proper mailing of EUO scheduling letters tolled the time to pay or deny the claim, and the provider did not dispute denial within 30 days of the second EUO date on both grounds. Although the insurer failed to establish the provider's EUO nonappearance, its affirmed IME report, based on an examination before the supplies were provided, gave a factual basis and medical rationale against further treatment or supplies. The provider's affidavit did not meaningfully address or rebut those conclusions. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51600(U)
Insurer prevailed
The insurer established full fee schedule payment of acupuncture claims and lack of medical necessity for other disputed services. The provider failed to establish untimely or legally deficient denials, and the insurer's unrebutted proof supported dismissal. Claims under CPT codes 97810 and 97811 had been fully paid using the chiropractor acupuncture schedule under Great Wall Acupuncture, P.C. v GEICO Ins. Co. For the other services at issue, a sworn acupuncturist's IME report supplied a factual basis and medical rationale that the assignor's injuries had resolved. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider's summary judgment motion, and granted the contested dismissal branches. Dismissal of services under codes 99202 and 99211 was not reviewed because the insurer made no appellate argument.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51586(U)
Insurer prevailed
The insured's EUO testimony established prima facie that the alleged injury did not arise from an insured incident. The insured testified that three passengers repeatedly requested money and, after the insured refused, police stopped the vehicle and reported the passengers' claim of a hit-and-run collision. The insured denied that any accident occurred while the passengers were in the vehicle. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., that testimony supported the insurer's lack-of-coverage defense, and the provider raised no triable factual issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51587(U)
Insurer prevailed
The insurer's summary judgment based on the insured vehicle's noninvolvement in the alleged accident was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the providers' cross motion for the reasons stated in the companion appeal decided the same day, Jamaica Wellness Med., P.C. v Hereford Ins. Co., No. 2015-2655 K C.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51588(U)
Split result
The provider's doctor's affidavit failed to meaningfully address or rebut the insurer's peer review finding of no medical necessity. The insurer established presumptive timely mailing of its denial and submitted a sworn peer review with a factual basis and medical rationale. The Appellate Term, Second Department, upheld summary judgment dismissing the claims and denial of the provider's motion, but modified the order to vacate the sua sponte award of fees to defense counsel. Under 22 NYCRR 130-1.1 (d), costs or sanctions imposed sua sponte require a reasonable opportunity to be heard, which the Civil Court had not provided. The court also noted the motion-cost limit under CCA 1906 (a).
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51589(U)
Insurer prevailed
The insurer's summary judgment based on the insured vehicle's noninvolvement in the alleged accident was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the providers' cross motion for the reasons stated in the companion appeal decided the same day, Jamaica Wellness Med., P.C. v Hereford Ins. Co., No. 2015-2655 K C.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51590(U)
Insurer prevailed
The insurer's summary judgment on lack of no-fault coverage because of a workers' compensation award was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal decided the same day, No. 2016-189 K C. The award concerned the assignor's injuries from the accident underlying the claims.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51591(U)
Insurer prevailed
A lack-of-coverage defense based on workers' compensation benefits is not precluded by defects in or untimeliness of a no-fault denial. The parties' motion papers established that the provider submitted workers' compensation claims and that the Workers' Compensation Board awarded the assignor benefits for injuries sustained in the accident underlying the no-fault claims. Relying on Zappone v Home Ins. Co. and Central Gen. Hosp. v Chubb Group of Ins. Cos., the court rejected the provider's challenge concerning the denial form. The provider raised no triable issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51592(U)
Provider prevailed
The insurer failed to establish that the assignor's residence misrepresentation was material to issuance of the policy. The insurer obtained summary judgment dismissing the provider's assigned no-fault claims on the ground that the policy had been procured through a material misrepresentation. Under Interboro Ins. Co. v Fatmir, materiality requires underwriting documentation showing that the insurer would not have issued the same policy had the correct information been disclosed. The record did not establish that the insurer would not have issued the policy in question. The Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51594(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. The insurer must show that it twice duly demanded EUOs from the provider, the provider twice failed to appear, and the claims were timely denied, following Interboro Ins. Co. v Clennon. The insurer's submissions sufficiently demonstrated the provider's EUO nonappearance, and the provider's argument that objective reasons for the requests were required did not defeat the motion. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the assigned no-fault claims.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51595(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims on the ground of the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2016-435 K C, without providing separate analysis of the assigned no-fault claims.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51596(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the claims for the assignor's IME nonappearance was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment. The insurer's proof sufficiently established proper mailing of the scheduling letters and the assignor's failure to appear for the scheduled IMEs.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51597(U)
Provider prevailed
The provider's owner's affidavit raised a factual issue about receipt of verification and whether the action was premature. The insurer established timely mailing of its initial and follow-up verification requests and made a prima facie showing that the requested verification had not been received. In opposition, the owner's affidavit was sufficient to create a presumption that the verification had been mailed to and received by the insurer. That evidence presented a triable issue concerning the prematurity defense. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied its motion.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51601(U)
Insurer prevailed
The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney. The provider argued that the insurer had not mailed the IME scheduling letters to the correct address. The insurer demonstrated that copies were mailed to the attorney representing the assignor concerning the accident, and its proof sufficiently established the assignor's failure to appear for the IMEs. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the assigned no-fault claims and denying the provider's cross motion.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51602(U)
Insurer prevailed
No payment is due for medical service fees exceeding permissible fee-schedule charges under 11 NYCRR 65-3.8 (g) (1) (ii). The provider sought assigned no-fault benefits for services rendered after April 1, 2013, the regulation's effective date under 11 NYCRR 65-3.8 (g) (2). The insurer obtained summary judgment because the amounts sought exceeded the workers' compensation fee schedule. Applying the regulation and Insurance Law § 5108 (a) and (b), the Appellate Term, Second Department, rejected the provider's sole appellate issue concerning the denial form and affirmed the order granting the insurer's motion and denying the provider's cross motion.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51603(U)
Insurer prevailed
The insurer sufficiently established the provider's failure to appear for two scheduled EUOs. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the assigned no-fault claims and denying the provider's cross motion. The court declined to review the insurer's request to dismiss the appeal as untimely because it relied on allegations outside the record included in an appellate appendix; the insurer's remedy was a motion for that relief.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51604(U)
Split result
An insurer must request supporting documentation before denying a By Report claim for insufficient documentation. The insurer denied services billed under CPT code 20999 without demonstrating that it requested the documentation needed to determine reimbursement under the workers' compensation fee schedule. Under 11 NYCRR 65-3.5 (b), additional verification had to be requested within 15 business days of receipt of the claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny summary judgment on that fee-schedule ground and remitted for determination of the unresolved medical-necessity branch. The provider's summary judgment motion remained denied because it failed to establish untimely denials or timely denials that were conclusory, vague or without merit as a matter of law.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51605(U)
Provider prevailed
The insurer's unsworn claim representative statement failed to establish timely denials based on the assignor's EUO nonappearance. In this action for assigned no-fault benefits, the insurer moved for summary judgment dismissing the complaint, and the provider cross-moved for summary judgment. The purported affidavit was not sworn before a notary public and could neither establish timely denial as a matter of law nor raise a factual issue concerning timeliness. The Appellate Term, Second Department, affirmed the order denying the insurer's motion and granting the provider's cross motion. The provider's prima facie showing was not challenged on appeal and was not reviewed.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51606(U)
Insurer prevailed
The insurer established proper mailing of EUO scheduling letters and the assignor's failure to appear for the scheduled EUOs. The provider appealed an order granting the insurer summary judgment dismissing its assigned first-party no-fault benefits complaint on EUO nonappearance grounds. The Appellate Term, Second Department, found the mailing and nonappearance proof sufficient, rejected the provider's remaining contention as meritless, and affirmed the Civil Court, Kings County, order in the insurer's favor.
Appellate Term, Second Department
Nov 9, 2018
2018 NY Slip Op 51607(U)
Split result
The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment. The insurer's affidavits did not sufficiently describe an office practice ensuring timely mailing of the denial. It therefore failed to show that its EUO nonappearance defense was not precluded and could not obtain summary judgment. The provider's affidavit likewise failed to establish either an untimely denial or a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the Civil Court, Queens County, order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the denial of the provider's motion intact.
Appellate Term, Second Department
Nov 8, 2018
2018 NY Slip Op 51630(U)
Provider prevailed
The insurer failed to show that policy limits were exhausted when the provider's claim was complete. The insurer sought summary judgment dismissing an action for assigned first-party no-fault benefits on the ground of exhausted coverage. Applying 11 NYCRR 65-3.15 and Alleviation Med. Servs., P.C. v Allstate Ins. Co., the Appellate Term, Second Department, found the proof insufficient to establish exhaustion at the relevant time as a matter of law. It affirmed the Civil Court, Kings County, order denying the insurer's motion, leaving the provider's claim pending.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51556(U)
Insurer prevailed
A provider that elects arbitration waives litigation of no-fault claims arising from the same accident, even if different bills are involved. Following Roggio v Nationwide Mut. Ins. Co., the court rejected litigation after an arbitration dismissal for insufficient standing proof, without prejudice to a new arbitration with supplementary proof. The insurer's summary judgment motion was timely under CPLR 3212 (a): the first notice of trial had been vacated, and the motion followed the second within 120 days. The provider's waiver argument was first raised on appeal and was not considered. The Appellate Term, Second Department, affirmed dismissal and denial of amendment, and dismissed the separate appeal from denial of reargument as nonappealable.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51551(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order denying the motion and dismissed the complaint. The insurer established timely mailing of initial and follow-up EUO letters, nonappearance on both dates and timely denials on that ground, while the provider raised no triable factual issue.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51552(U)
Insurer prevailed
The insurer's transfer of claims between its offices did not raise a triable issue defeating summary judgment for EUO nonappearance. The Civil Court found, in effect under CPLR 3212 (g), timely and proper mailing of EUO notices and denials and the provider's nonappearance, but reserved for trial the insurer's mail-receipt practices in Atlanta. The provider did not challenge the insurer's prima facie showing of two duly demanded EUOs, two nonappearances and timely denials under Interboro Ins. Co. v Clennon. Its opposition raised no triable issue, and internal claim transmittal supplied none. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51549(U)
Insurer prevailed
The provider's trial judgment against MVAIC was reversed because exhaustion of remedies against the vehicle owner was not established. The Appellate Term, Second Department, deemed the claim premature under Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp. and Hauswirth v American Home Assur. Co. It remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51550(U)
Insurer prevailed
The insurer established late accident notice through an NF-2 received more than 30 days after the accident and timely denials on that ground. The insurer first learned of the accident upon receiving that form, outside the notice period in 11 NYCRR 65-1.1 (d). Its denials advised that late notice would be excused upon reasonable justification, as required by 11 NYCRR 65-3.3 (e). This established prima facie entitlement to judgment, while the provider's counsel's opposing affirmation raised no triable factual issue. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted the motion dismissing the assigned no-fault claims.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51554(U)
Insurer prevailed
The insurer's cross motion for summary judgment was upheld because its proof established that it had issued no policy covering the loss. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the assigned no-fault claims. The decision rejected the provider's challenge to the sufficiency of the insurer's proof without describing that proof.
Appellate Term, Second Department
Nov 2, 2018
2018 NY Slip Op 51555(U)
Provider prevailed
The provider's affidavit raised a factual issue about receipt of verification and whether the disputed portion of the action was premature. The insurer established prima facie that it properly mailed verification requests and did not receive the requested material, defeating the provider's challenge to its mailing proof. However, the provider's opposing affidavit created a presumption that the verification had been mailed to and received by the insurer. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branch of the insurer's summary judgment motion seeking dismissal of the portion of the complaint challenged as premature.
Trial court, Second Department
Nov 21, 2018
2018 NY Slip Op 51659(U)
Provider prevailed
The insurer failed to prove nonreceipt of requested verification within 120 days through admissible affidavits. The Civil Court, Kings County, denied the insurer's motion for summary judgment dismissing the provider's no-fault complaint. Although 11 NYCRR 65-3.5 (o) permits denial for failure to provide verification within 120 days, the insurer's adjuster lacked demonstrated personal knowledge of its mailing vendor's incoming-mail procedures. The vendor employee's affidavits neither unequivocally denied receipt nor established that the identified records comprised all records found, and the exhibits were not adequately linked to the search. The court also found the affidavits inadmissible under CPLR 2309 (c) because identical copies of a single conformity certificate were supplied for two out-of-state affidavits.
